People v. Beeman

• Citation: 551 P.2d 726,37 Colo.App. 417
• Decision Date: 11 March 1976
• Docket Number: No. 75--351,75--351
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lawrence Eugene BEEMAN, Defendant-Appellant. . I
• Court: Court of Appeals of Colorado

Page 726

551 P.2d 726

37 Colo.App. 417

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lawrence Eugene BEEMAN, Defendant-Appellant.

No. 75--351.

Colorado Court of Appeals, Div. I.

March 11, 1976.

Rehearing Denied April 1, 1976.

Certiorari Granted June 21, 1976.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Deborah L. Bianco, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Goodbar, Barash & Fischer, James Robert Barash, Colorado Springs, for defendant-appellant.

KELLY, Judge.

The defendant appeals his convictions of rape and deviate sexual intercourse by force in violation of what are now §§ 18--3--401 and 18--3--403, C.R.S.1973. He contends that the trial court should have granted his motion for a mistrial because of the bias of a juror; that the trial court erred in rejecting the testimony of his expert witness; that the district attorney was guilty of prosecutorial misconduct; that exculpatory evidence was withheld by prosecuting officials; and that the cumulative effect of irregularities during the trial deprived him of a fair trial. We affirm.

The record shows that the defendant and the complaining witness had known each other casually prior to August 3, 1974, the date of the offense, having become acquainted while both were employed by a food distribution company. At approximately 12:30 a.m. on August 3, the defendant telephoned the complaining witness at her home and asked to come over to see her. She testified that, although she had previously refused to accompany the defendant on a proposed trip to Acapulco, nevertheless, the defendant wanted to talk to her about the trip.

At approximately 1:00 a.m., the defendant arrived at the complainant's housetrailer, bringing with him a bottle of wine. The complainant and the defendant agreed that she was wearing a floor-length, cotton housedress when she answered the door. Although she said that she also had on a bra and underpants, the defendant testified that she was without underwear.

The two visited for approximately forty-five minutes, during which the defendant was drinking wine. Although the complaining witness testified that she drank only water, the defendant testified that they both drank some wine. Also, a detective who investigated the scene testified that he had found an empty wine bottle and two glasses, both of which smelled as if they had previously contained an alcoholic beverage.

According to the complainant's testimony, her insistence that the defendant leave because she had to work the following day provoked the defendant to remove from his pocket a pearl-handled knife with which he cut the front of her housedress. The dress was further ripped during an ensuing struggle. When the complainant screamed, awakening one of her neighbors, the defendant held the knife to her throat and threatened to kill her, according to her testimony. The defendant then took her to the bedroom when he forced her to perform fellatio and to submit to cunnilingus and sexual intercourse.

The defendant's theory of consent was reflected in his testimony. He conceded the sexual acts, but denied that force had been used. The complainant's housedress, he said, had been accidentally ripped during their playful, pre-sexual scuffling, and her screams had been expressions of pleasure during the intercourse.

The defendant did not deny that the complaining witness had refused his invitation to go to Acapulco. He said, however, that after the intercourse, when he told her that he had only asked her to go on this trip because his wife could not accompany him, the complainant, who had not previously known he was married, became hysterical. He was forced, he said, to slap her face to bring her out of her hysteria.

After the incident, the complainant drove to the home of friends, where she telephoned the police. Some time after the arrival of a sheriff's officer, the complainant was taken to a hospital and was examined by a physician, whose examination confirmed that sexual intercourse had occurred. The complainant's friends, the sheriff's officer, and the doctor testified that she had been crying, was very upset, and that she had marks on the side of her neck, under her chin, and a scratch on her shoulder.

I.

Early in the trial, but after the jury had heard the complainant's testimony of her acquaintance with the defendant through their mutual employment by the food distribution company, and her testimony that defendant had accosted her with a pearl-handled knife, the bailiff was advised by one of the jurors that she believed she had previously known the defendant. The defendant promply moved for a mistrial, and the court, pursuant to § 16--10--103(3), C.R.S.1973, instructed the bailiff to escort the juror to chambers for an in camera inquiry.

There, the juror, in response to questioning by the court, explained that her daughter had, at some previous time, received a call from a person the juror believed to be the defendant concerning the purchase of a home-freezer food plan. The defendant, during his visit to the daughter's home, had been more interested in discussing politics than in selling the food plan, and his doleful predictions for the future of the world had upset the daughter, who was then pregnant. Although it was clear that no sexual improprieties were involved, the juror, perceiving the salesman's conduct to be inappropriate under the circumstances, had telephoned his employer to complain of his behavior.

The juror also advised the court in camera that her daughter had once owned a pearl-handled knife which generally fitted the description of the one carried by the defendant, and which the juror, while at her daughter's home, had taken away from her grandson, and had subsequently been unable to find. The juror conjectured that this might be the knife used by the defendant in this case.

Upon close inquiry by both the court and defense counsel, however, the juror was firm in her assertions that these matters would not affect her judgment in this case. Among other responses, the juror stated that:

'(The defendant) is not being tried on what happened in my daughter's house at all.'

'I would not want to unfairly judge anyone (.)'

'I think I would completely try him on this offense.'

'But, but--now let's discuss this. I only mentioned the knife. I just mentioned it to you, but I'm not--I think I would be open minded enough to try this man in my mind on the crime that he is being accused of, where he raped the girl. This is what I would try him on; not on the fact that maybe that was the knife like was in that home.'

'No, the reason I brought up the knife, I was trying to convince myself whether he is the same man or not. If he had the knife I would know in my heart he was the same man at my daughter's, but I would still try him on the charges that he is being charged with. I would want to be very, very sure.'

The juror assured the court that she had not discussed these matters with the other jurors and that she would not do so. The trial court admonished her to put these matters out of her mind, and denied defendant's motion for a mistrial.

The defendant now asks this court to rule that this juror was prejudiced, as a matter of law. This we cannot do.

'The elements entering into the question of when a trial court is justified in declaring a mistrial are not so specific and circumscribed that the issue may be decided as a matter of law nor are there established standards in adequate detail to enable the court so to do. Nor do the decisions of the appellate courts of this jurisdiction, nor of others, require such exacting fineness, they being content to leave the matter to the sound discretion of the trial court.' Brown v. People, 132 Colo. 561, 291 P.2d 680.

Such discretionary rulings of the trial court will not be overturned on review in the absence of a clear showing of abuse. See Collins v. Burns, 16 Colo. 7, 26 P. 145; Kelly v. People, 121 Colo. 243, 215 P.2d 336.

In Colorado, a prospective juror is not disqualified to serve because of a previously formed or expressed opinion concerning the guilt or innocence of a defendant, if the trial court is satisfied, after an independent examination of the prospective juror, that he will render an impartial verdict. People v. Buckner, 180 Colo. 65, 504 P.2d 669; § 16--10--103(1)(j), C.R.S.1973; Crim.P. 24(b)(1)(X); See also Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751. These same statutory standards, applicable to challenges for cause, apply where, as here, the grounds for disqualification are first discovered after commencement of the trial. Cf. Hopkins v. People,89 Colo. 296, 1 P.2d 937; and See United States v. Rowell, 512 F.2d 766 (8th Cir.).

The determination of juror bias is a question of fact, See Leick v. People, 136 Colo. 535, 322 P.2d 674, and impartiality is a state of mind. As evidence of state of mind, a juror's assertions of impartiality may properly be considered and weighed by the trial court in determining the factual question. See People v. Cole, 54 Ill.2d 401, 298 N.E.2d 705. As the court said in Leick v. People, supra:

'To believe or not to believe becomes his problem; if the trial judge believes, may we say he erred in believing? May we supersede his determination of fact in this respect?

'The proper exercise of this discretion requires the trial judge to determine the competence of the juror to sit in judgment in the case. He hears the questions put to the juror and the answers given, observes the juror's demeanor while being interrogated, and discerns through the use of his eyes, ears and intelligence wherein truth and credit should be given. The reviewing court does not have the benefit of this personal observation which is so important in judging the credibility of the juror.'

Here, the attenuated relationship which the juror had with the defendant is not such as to require us to say that the...